Freedom of speech does not end at the First Amendment

Someone said or did something controversial. Then, private companies decided not to let the person use their platforms anymore. (Or they deleted a few posts or whatever.) Not too long after, the person (or their followers) make an appeal to freedom of speech. Something like “[Company] is violating [person]’s free speech!” with “and that’s bad” implicit at the end. In response, people who don’t like what was said come around with the revelation that the First Amendment to the US Constitution only applies to the US government. Private companies (and other countries) have the legal right to silence people or disallow them from using their platform.

Yes, that is true. The First Amendment, for example, does not say anything about the legal status of me deleting your comments on my blog, for example. Or WordPress deleting my blog posts on their website. Yet, in either case, freedom of speech is being violated. This is possible because free speech (or “speech that is neither restricted nor silenced”) is something we can understanding independently of the First Amendment. That the First Amendment makes reference to freedom of speech should make this rather apparent.

There are of course several positions one could hold regarding free speech:

  1. Free speech is good without exception: This is often the value touted by people trying to defend the right to say anything, anytime, anywhere. An equivalent phrasing is “All restrictions on speech are bad.” If we want to be less extreme, there are two ways to make exceptions:
  2. Everyone’s having access to free speech is good without exception: This makes room for private entities and such to restrict speech so long as the option to speak freely exists somewhere. Often this value is working in the background when people who are silenced or restricted are told they can go speak freely in their own space, or in a publicly owned space.
  3. Free speech is good with some content exception: That is, it’s bad to restrict speech based on location, time, speaker, etc., but there are some things that ought not be said, and silencing speech of that kind is fine or even good. Of course, with this value we get the further question of what speech is bad enough to restrict.

Unfortunately often, people talk past each other because they don’t agree on this initial question. Or, someone will disingenuously take up one of these for the sake of not having to defend her side in a later question.

I take it most people, at least in the US, have a position that is a combination of 2 and 3. But, if you endorse position 3, then you have to make material distinctions. You cannot just say “Well, everyone has the right (in the sense of “should be allowed”—not necessarily legal right) to say anything,” but rather “In general, everyone has the right to say anything, and this instance is not exception because….” But if the instance is particularly appalling, then what comes after “because” can be rather unpleasant. For instance, to defend someone spouting white supremacist nonsense, you have to defend that nonsense in particular against the reasons why it ought to be silenced. That’s usually going to look like you think the nonsense is not egregious and harmful falsehoods. So, appealing to position 1 instead is very tempting.

One caveat worth noting is that a good does not have to be completely overriding. For example, someone might actually hold position 1  but also believe that the good of free speech can be easily overcome. Maybe it is good to let anyone say anything, but keeping the peace is a greater good, so when the two clash, keeping the peace wins. Thus, positions 2 and 3 are not just position 1 plus recognizing sometimes there are greater goods. Rather, someone who holds position 2 actually does not think it’s particularly good to have setting-unrestricted speech. And someone who holds position 3 thinks that there are some things that are not at all good to allow people to say. (Again, the allowing can be done by a government or someone else. And if allowing it is bad, one might believe that everyone has a duty to silence it.)

I, for instance, hold position 3. In general, people being able to speak without restriction is good. But, there are some things that are bad enough that they aren’t worth allowing their expression. Perhaps it’s not the role of the state to make the restrictions, but the speech should somehow be disallowed. Yet, I also think there are some goods that can outweigh unrestricted speech. Sometimes privacy, for example, demands some speech restrictions. I shouldn’t be allowed to barge into your personal space to speak, and I shouldn’t be allowed to reveal all of your personal information to the world.

The other caveat worth mentioning is that these three positions are not exhaustive. The most obvious omissions are positions that don’t hold freedom of speech as a value at all. To address these positions requires stepping further back to investigate whether freedom of speech, in general, is good. But, in the original context I described, both sides agree that freedom of speech has some positive value.

We can pose a series of questions, then, to isolate disagreement and allow for more fruitful conversation:

  1. Is freedom of speech, at least in general, good? (If yes, go to 2)
  2. Are there exceptions to its goodness that include the situation at hand? (If no, go to 3)
  3. Is there some other good that outweighs the goodness of freedom of speech in te situation at hand?

 

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